Sexual and gender-based violence and other victimization of the women and girls in Somaliland goes over decades, it becomes historically, when the president of the Somaliland Mr. Muse Bihi finally ratified the sexual offensive act, and this historical decision was noted for advancement and promotion of the rights of women, girls and children to live preserve environment in Somaliland. the case of gang rape and rape have been alarming and threatening the security of the women and girls in Somaliland. The bill was finally endorsed in April 2018 by senators in the house of representatives, 42 of the representatives have provided their votes. New approved Sexual Offence Law criminalized all forms of sexually related actions including rape, gang rape, and criminal assault, child marriage, and trafficking. Meantime, the House of Guurti has approved amendments with 15 articles of the bill, the modification affected core articles that related to the proceeding of the cases. They lowered the punishment of the preparators and the procedures of filing the grievances and important related articles.
2018, Ministry Employment, Social, and Family Affairs (MESAF) reported 520 rape cases, in 2019 there were 460 cases of rape reported, although there are high numbers of rape cases not reported due to discrimination and stigma against victims and lack of access to public data on the rape, other reports suggested the most rape cases occur in the rural areas and IDPs.
Unfortunately, in August 2020, the house of the representative of Somaliland approved and new bill and they modified Sexual Offence law (Lr.78/2018), and the new law is named Rape, Fornication and other Related Offences Law No. 78/2020 which means in Somali language “Xeerka Kufsiga, Sinada iyo Xadgudubyada la Xidhiidha”
Somaliland GBV Coalition and other Human rights defender organizations have agreed upon after they carried out the comprehensive legal analysis on the newly approved bill. The new bill violated the constitution of Somaliland, and if enacted into law more women, girls and children will be at risk, and it will support the preparators. The findings from the analysis highlighted.
- The law is complex, written in vague language, and removes consent from the definition of the rape, the current bill follows a similar approach as that outdated Penal code.
- A victim of rape has to prove the occurrence of force, coercion, threat, or kidnapping. The absence of one of these factors would carry out the act Zina, meaning the victim is subject to the harsh punishment of Zina.
- A person under the age of 15 can be categorized as a child under the Bill. Hence, 9 years or 10 years old may be dealt with as adults. This will deliver a drastic negative impact to the rights of children.
- The definition of child in the Bill already allows the possibility of dealing a child under 15 as an adult if the “signs of maturity become visible.”
- the Bill considers substantial risks to children in Somaliland in general, not only victims or those accused of sexual offenses.
- in the bill, who rape children will be uncharged with rape. This has far-reaching implications. An increasing number of rape survivors in Somaliland are children. If this bill gets enacted, many of them will no longer be explored by the law as victims.
- The Bill imposes two parallel punishments for each offense. For instance, it imposes rape convicts Huduud punishment and imprisonment of 5 to 10 years, unless the Huduud punishment endures death.
- The most difficult, complex, and poorly drafted part is article 34 of the Bill which covers demonstration and burden of proof. According to article 23(3) of the Draft, medical reports (medical examination report) cannot be used as a confirmation of a commission of rape or other related sexual offenses.
- The complexity of the evidence system instructed by the new Bill is not consistent with the evidence rules of the Criminal Procedure Code. Because the Bill has two parallel punishments (a. Sharia-Huduud; and b. imprisonment), it provides two parallel evidence. For Huduud, the testimony of four witnesses is required. To sentence imprisonment, the testimony of two witnesses corroborated by medial affirmation and circumstantial evidence is required.
- According to article 4(T)(6) of the Bill, if a person rapes and murders the victim, the punishment is the death penalty. But if the family of the victim accepts financial compensation (Diya) or forgives, the offender will go free.
Above mentioned points are a summary of some of the legal analysis findings from the fornication and the other relevant violence law (Lr.78/2020). Meanwhile, previous sexual offense Bill (Lr.78/2018) all stakeholders, CSOs, and other community members participated in it formation. However, the new Bill (Lr.78/2020) Civil society organization and other stakeholders were unallowed to participate and didn’t provide those who will be responsible for implementing an opportunity to contribute their inputs. Therefore, the drafting of the bill was not openness and transparency. Somaliland GBV coalition according to the findings it will be very difficult to prosecute suspect of rape, at identical, the bill will make hard for survivors of rape and other sexual assault to report in fear of reprisal and punishment. Finally, Somaliland GBV Coalition solicited the bill constitutes a violation of the constitution of Somaliland and international human rights law and applicable evidence law and trial procedure Children will particularly face a dangerous situation. The Bill grants immunity for perpetrators of sexual and gender-based violence.
Somaliland GBV Coalition is calling the president of Somaliland, Mr. Muse Bihi to consider the voice of local CSOs, if this bill is approved more women, girls and children will be at risk due to unclearness of the law. the approved law of the parliament is needed review, there are some articles who are against the Islamic religion and this is a need house of the Guurti with working legal practitioners and Islamic experts to review the articles before it the approved. The rape and the fornication (sinna) have not the same punishment, the law didn’t make a clear point of the punishment when it comes to Islamic law. so, it is needed to clarify the punishment of the rape in ways that people could easily understand. We finally called the House of Guurti should respect the rights of the constitution of Somaliland to provide women, girls, and children.
Produced by Somaliland GBV Coalition.
